Chapter 17

Page 309, para 17.3.3
Breach of confidence
Napier v Pressdram Ltd. [2009] EWCA Civ 443

The appellant had attempted to obtain an interim injunction against Private Eye, to prevent the publication of the results of an adjudication by the Solicitors’ Regulation Authority (SRA) against him. The Court of Appeal emphasised the freedom of the press to report the truth and that the test of what kind of information and circumstances carried with them a duty of confidentiality was an objective one, based upon what the reasonable person would regard as confidential. The SRA did not exist in order to protect the reputations of solicitors or their firms. No reason had been put forward why the complainant or any other party should regard the findings as confidential. The test laid down in s.12(3) of the Human Rights Act 1998 for relief of the type sought was not satisfied.

Page 309, para 17.3.3
Breach of confidence
The Author of a Blog v Times Newspapers [2009] EWHC 1358 (QB)

The issue was whether The Times could be prevented from revealing the identity of an anonymous blogger. The claimant was a serving police officer and in his blog he had expressed strong and critical opinions about his job, administration of justice and various politicians.

Mr. Justice Eady applied the objective test laid down by the Court of Appeal in Napier v Pressdram:

…For a duty of confidentiality to be owed (other than under a contract or statute), the information in question must be of a nature and obtained in circumstances such that any reasonable person in the position of the recipient ought to recognise that it should be treated as confidential.

The cause of action in confidence, in the absence of a pre-existing relationship of confidence between the parties, had been extended to information of a strictly private nature: financial, sexual, health, or family related. The information in question did not have the necessary ‘quality of confidence’, described in Coco v A.N. Clark ([1969] RPC 41). Despite the fact that he accepted that the claimant might be subjected to disciplinary procedures if his identity was disclosed to his employers, the judge regarded blogging as an essentially public rather than private activity. Any interest in privacy on the claimant’s part would be outweighed by the public interest in knowing the identity of the police officer responsible.

Neither of the above two recent breach of confidence cases can be said to be ground-breaking; Napier featured a somewhat unusual set of facts and that against Times Newspapers was a decision of the first instance. However together they illustrate a resolutely restrictive stance on the part of the courts to further inroads into the freedom of the press.

Page 313 (also relevant to Chapter 18: Remedies and limitation)
Mosley v News Group Newspapers [2008] E.M.L.R. 20

Max Mosley, the Chairman of Formula One and son of the late Oswald Mosley a fascist sympathiser, sued the defendants for breach of confidence and unauthorised publication of personal information contrary to art. 8 ECHR. The News of the World had published photos (clandestinely taken) of him partaking in a sado-masochistic 'orgy' and these were accompanied by an interview with one of the female participants. The action was founded upon the pre-existing relationship of confidentiality between the participants, and it cited as authority McKennitt v Ash.

Mr. Justice Eady in the High Court carried out the now familiar balancing exercise between articles 8 and 10 and was not convinced by the defendants' allegation that there had been a Nazi or 'death camp' theme evident in the session, thereby creating a public interest in its revelation. He concluded that the claimant had had a reasonable expectation of privacy in relation to sexual activities ('albeit unconventional') carried out between consenting adults on private property. He commented particularly on the potency of visual images.

Mosley was awarded £60,000 damages for the distress suffered and as recognition that his right to privacy had been breached. In doing so the judge was guided by the comparable tariff in defamation cases but declined to extend damages to include any exemplary or deterrent aspect.

Oxford University Press, Online Resource Centre, Chapter 17.

Chapter 17